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1 Conceptualizing legitimacy as a target
We can no longer have any illusions on the nature of the principles of legitimacy: they are human, that is empirical, limited, conventional, [and] extremely unstable. Any philosophical hack can demonstrate their absurdity; any dictator, at the head of a gang of cutthroats, can suppress them. Nevertheless, they are the condition of the greatest good that mankind, as a collective being, can possessâgovernment without fear.
(Ferrero 1942: 314â315)
I Introduction
An essential dimension of political struggle, whether armed or unarmed, will inevitably revolve around the power to command and the will to obey since their establishment is what organizes a society. How this is instituted and exercised remains a central and oscillating question for any body politic, and it is surely necessary for a government to manage both elements in order to be defined as functioning. For a community to operate as a unit, decisions and plans must be fixed and then put into action. This clearly requires both command and obedience. Yet, while a commander can be targeted and destroyed with dominant strength, obedience is more elusive and volatile because it is inevitably up to each citizen to exercise this through her own individual will.
As a result, obedience is an element that cannot always be easily explained through the conventional prism of force. There is little doubt that the use of force has commanded compliance time and again. Nevertheless, today it has become clear that access to more powerful weaponry has faded as the primary deciding factor in every political struggle. It is therefore necessary to move beyond notions of pure force to investigate how some tactics applied by the less powerful in armed conflict are intended to achieve victory. Thus, this work will instead examine how the strategic goals of those who utilize terrorist acts might actually be achieved. That is, the aim is to achieve their goals through the provocation of a reaction deemed to be illegitimate since they are clearly not employing overpowering conventional force.
At the beginning of the twentieth century, German sociologist and political economist Max Weber put forward a definition of the state that has become central to Western political thought. Weber described the defining concept of the state as âa human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territoryâ (Weber 1946: 78; original emphasis). The thesis of this work will build on what is considered here to be an essential element of this valuable definition: legitimacy. While much attention has been focused on the aspect of physical force found in this definition, the notion of its legitimate exercise is particularly useful for illuminating the line of attack charted by the asymmetrical tactic and strategy of terrorism.
Moreover, it should not go unnoticed that Weber emphasized the exercise of force by a state as the key function tied to its legitimacy. Likewise, this will serve to construct the thesis of this work, as the US wartime authority exercised in the âwar on terrorâ was at times overreaching and in turn became damaging to the legitimacy of the government. Although it is important to recognize that it is extremely difficult to validate any legitimacy claim, one particular moment at which legitimacy comes into sharp focus is when a stateâs use of force is challenged. One historical example that has been pointed out is the legitimacy deficit that the US suffered during the Vietnam War. To be sure, many groups that have employed terrorism have raised the legitimacy of the use of force against the people they claimed to represent as central to their grievance against the perceived enemy government (Cook 2003).
Following this same line of thought, the US Army Field Manual 3â24 Counterinsurgency (2006) highlights the centrality of legitimacy over and over again in discussing modern warfare. While this army manual is focused on the use of the US military in foreign territory, and thus at first glance might not seem applicable in this broad conflict of the âwar on terror,â one should remember that Al-Qaeda has indeed engaged the US in its own asymmetrical conflict. This means that it is certainly appropriate to classify this group as insurgents attempting to undermine the US government, and, as such, the lessons of counterinsurgency are directly applicable to our discussion. The manual instructively explains,
[i]llegitimate actions are those involving the use of power without authorityâwhether committed by government officials, security forces, or counterinsurgents. Such actions include unjustified or excessive use of force, unlawful detention, torture, and punishment without trial. [âŠ] Any human rights abuses or legal violations committed by US forces quickly become known throughout the local populace and eventually around the world. Illegitimate actions undermine both long-and short-term COIN [counterinsurgency] efforts.
(US Army 2006: 1â24, §1â132)
As we analyze the policies of the âwar on terrorâ in this work, we will find that the exact same examples citedâi.e., the âunjustified [âŠ] use of force, unlawful detention, torture and punishment without trialââbecame part and parcel of that very policy. The fact that this military doctrine guiding US forces in their overseas campaigns claims that âlegitimacy is the main objectiveâ (US Army 2006: 1â21) lends credence to our own theory posited here, and both the coincidence and the divergence will be explored in the next chapter. Once we understand that the actions of government in response to terrorist acts are often directly related to the legitimate exercise of authority and are consequently central to the conflict, the need for more thoughtful and defensive counterterrorism policies becomes imperative.
This concept of legitimacy will be central to our analysis because the exercise of the âlegitimate use of physical forceâ ultimately bears upon obedience to command. It will be posited that those who employ terrorist attacks attempt to achieve their strategic goals by driving a wedge between command and obedience within the enemy society. By provoking an overreaching reaction from a government to deal with the terrorist threat, or by triggering a response that is considered to be outside of the confines of the governmentâs authority, the intention is that the citizenry of the rival society will deem the actions carried out to be an illegitimate exercise of physical force. If the determination of illegitimacy pertaining to a policy or government becomes widespreadâthat is to say, that citizens no longer orient their actions in accordance with the authorityâthen that society is significantly destabilized because it cannot function or move as a unit.
Even before such a drastic state of affairs occurs, a government that has a diminishing pull toward compliance with its authority encounters difficulties. That todayâs predominant purveyors of terror wish to immobilize and disorient their enemy to help reach their strategic goals is hardly controversial. In some measure, this will be an explicit conceptualization of what has been broadly suggested by other analysts.
Most importantly, however, the objective of this work is first to illuminate the manner in which non-state actors that employ terrorism attempt to reach their overarching goals through a âstrategy of provocationâ (Laqueur 1977: 81) meant to target legitimacy. Next, to enrich the discussion of legitimacy, we will present a distinctive way to conceptualize the specific content of legitimacy so that it can be applied as a series of lenses, or tools of analysis, for viewing and discussing this issue. In doing so, it will be possible to highlight the critical role that international law and diplomacy have played in evaluating the overreach in the âwar on terror.â With this clarified understanding of the enemyâs strategy for reaching its objectives, we can have a valuable conversation about how a government attacked by terrorism can best defend itself.
To begin our discussion of legitimacy as a target, it is first necessary to explain the structure of this chapter. Partly because of its interdisciplinary nature, it is suggested that the sometimes rigid disciplinary lines of academia have not fostered sufficient attention on legitimacy during times of political struggle. Nonetheless, there are important works that can be utilized collectively as solid building blocks to construct our theory. The question of what makes power legitimate has been of concern for a whole host of professional groups (legal experts, political and moral philosophers, historians, and social scientists, to name but a few) who have approached the subject from diverse perspectives, primarily using their own professional expertise. Yet offering a single disciplinary perspective on the concept of legitimacy can skew and distort this topic of deep complexity. It is therefore preferable to employ an integrative methodology that sheds light on this multifaceted concept so as to overcome a narrower approach. To do so, we will present the pertinent work on legitimacy in a way that recognizes, grapples with, and illuminates the interdisciplinary nature of this concept.
To start, it is helpful to discuss some of the different terms used to describe a research project that is meant to bring together and integrate various disciplines in order to resolve a question too complex to solve through only one field of study. In general, there are three primary terms used to express this type of approach. Multidisciplinarity looks at a topic from the perspective of several disciplines at one time, but makes little attempt to join together their insights and thus is often dominated by the home discipline of the researcher. Interdisciplinarity brings together a collection of viewpoints from various disciplines and then draws on the diverse insights by finding ways to integrate them. The third term, trans-disciplinarity, is meant to capture âthat which is at once between the disciplines, across different disciplines, and beyond all disciplinesâ (Repko 2012: 20â21; original emphasis).
One useful way to think about these terms is to use the analogy of a jigsaw puzzle. Multidisciplinarity is about bringing differing points of view to the table as separate pieces of a jigsaw puzzle and making a modest effort to see how they might fit together. Interdisciplinarity is when one tries to assemble these puzzle pieces by comparing them, looking for the concave and protruding portions so as to find how they might usefully interact and join together. Transdisciplinarity is meant to describe when the pieces of a puzzle have been fitted together in a way that produces a whole new image. While it is important to recognize that this metaphor is imperfect because the outcome of a jigsaw puzzle is predetermined and the way disciplinary data comes together is much more fluid and supple, it is still a worthwhile analogy that communicates well the objective in looking outside of one discipline for answers to a complex question.
Thus, the first part of this chapter will be organized as a piece-by-piece construction of differing ideas on legitimacy put forward by the most pertinent intellectuals from different disciplines. In this way, it will be possible to see the logic and reasoning for the conceptualization of legitimacy as a target. While there are certainly various scholars who have discussed the concept of legitimacy, its meaning and application have been quite varied. Therefore, there is a limited number of works that are directly germane to our discussion here. As such, we will present the pertinent ideas from authors from different disciplines and allow them to come together in this chapter in what is meant to be an interdisciplinary dialogue.
Sections IIâVI will explore the most relevant authors to have treated the concept of legitimacy relative to the context of political struggle. We will start by exploring the literature on the joining of political violence with legitimacy to arrive at the classical works on the subject by sociologist Max Weber and philosopher JĂŒrgen Habermas. Then social scientist David Beethamâs work on legitimacy will be investigated to expose his valuable discussion on power relations and their deterioration. Next, political theorist Hannah Arendt will provide highly beneficial insights on the idea of coerced obedience and its limitations, along with the definition of power as action in concert. The work of international legal scholar Thomas Franck will then present us with constructive language and vocabulary for better understanding the concept of an uncoerced pull toward compliance. With this we will arrive at the historian Guglielmo Ferrero, who will offer an indispensable discussion and imagery that will allow us to put forward our own unique conception of legitimacy as a target of terrorism.
Section VII will then present the logical and necessary next step. That is to say, it will expound on the work of legal philosophers François Ost and Michel van de Kerchove to hypothesize a structure and content for understanding legitimacy in our context presenting legality, morality, and efficacy as the interactive components being targeted by those who employ violent attacks on noncombatants. Next, Section VIII will discuss how the interplay and overlap of these elements can be understood through the work of legal philosopher H. L. A. Hart, along with presenting how the model will be applied in this book in Section IX.
II Political violence and legitimacy: social science and philosophy
There has been general recognition by some social scientists that legitimacy is an important part of the struggle when there is a clash between a government and a group that uses violent actions as their means to engage them politically. In the philosophical literature there have certainly been some attempts to define legitimacy. However, there has infrequently been an attempt to marry legitimation and terrorism in a way that would illuminate the analysis.
Martha Crenshaw edited the volume Terrorism, Legitimacy and Power, which brings together a variety of political scholars to investigate the consequences of terrorism. Of interest for us is that several of the contributors, including the editor, agree that âlegitimacy is the key to a successful response to terrorismâ (Crenshaw 1983: 147). One contributor focuses particularly upon the tension that is created by terrorism because a government needs to maintain and strengthen its own authority while at the same time diminishing the legitimacy of the terrorists. Hence both effectiveness and the legitimacy of policies are discussed as necessary elements for doing so (Quainton 1983: 52â64).
Accordingly, we find an approach throughout Crenshawâs book that dovetails with our own judgment that the legitimacy of the policies instituted to deal with a terrorist threat must be constructed with the understanding that overwhelming force without limits can backfire. This is especially the case when all of the culprits responsible for a violent act of terrorism are difficult, if not impossible, to distinguish, track down, and bring to justice. Yet, even though there is recognition in this edited work that â[a]ctions against the terrorists must be scrupulously legal,â combating the threat using similar methods in retaliation is âmorally abhorrent,â and that â[e]fficiency and legitimacy [âŠ] are closely relatedâ (Crenshaw 1983: 33â35), there is a disappointing lack of effort aimed at giving any real shape to the concept of legitimacy.
Overall, this work by Crenshaw represents the type of attention that the social-science community has given to investigating terrorist attacks in the context of the legitimacy of a regime. One major difficulty for this discipline is that, as recognized by Crenshaw, the legitimacy of a regime is a normative concept and, as such, lacks any scientific metrics, or statistical data, by which it can be adequately measured. Recognizing this truth also means that it is not possible to simply assume that states under attack by terrorist actions, even democratic ones, are to be automatically deemed clearly and perpetually legitimate. This is not meant to suggest that those who employ terrorism have a just cause; it is only an unsophisticated binary framing of the conflict that would lead toward such a conclusion. Rather, it is to point out that the legitimacy of every regime is always in flux and change, and it can indeed be directly affected by terrorism and counterterrorism. Yet beyond this recognition of legitimacy as a normative concept, and pointing to the important connection between political violence and legitimacy, âmost social scientists have rarely bothered to discuss the issue at any lengthâ (Cook 2003).
One article that explicitly links terrorism and legitimacy is a piece by the philosophy scholar Deborah Cook, entitled âLegitimacy and Political Violence: A Habermasian Perspectiveâ (2003). The reason she puts forward for writing her article is that â[s]ince political violence today often revolves around the issue of legitimacy, this issue requires much closer scrutiny than it has received in the existing social scientific and philosophical literatureâ (2003). In Cookâs article, one gets a real sense of how much uncultivated territory lies between the phenomenon of terrorism and the concept of legitimacy. She explains,
because legitimacy is a controversial and complex notion, involving not only legal and political matters, but also more strictly moral considerations, it is probably not surprising that social scientists usually avoid dealing with the issue once they have identified legitimacy as pivotal in the conflict between states and terrorist organizations.
(Cook 2003)
This being the case, in her article Cook does a superior job of outlining the problĂ©matique. She identified the current lacuna in the literature and then moved the discussion forward by offering an insightful and pertinent analysis of the work by Max Weber and JĂŒrgen Habermas on legitimacy. In doing so, she places it in the context of terrorism. Therefore, what is necessary for our work here is to highlight the most salient portions of Weberâs and Habermasâs work.
An investigation of Weber and Habermas on the issue of legitimacy presents us with two different approaches that have important impacts upon its treatment. It i...
